Hermann and Victor - [2008] FamCA 462

FAMILY COURT OF AUSTRALIA

HERMANN & VICTOR

[2008] FamCA 462

FAMILY LAW – ORDERS – Contravention – mother changed children’s school without consent of father or Court contrary to injunction – previously found mother contravened order without reasonable excuse – whether serious disregard of obligation under order – serious disregard not established – matter to be determined under Subdivision E – appropriate penalty – consideration of decision of Full Court in Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) (2007) FLC 93-341 regarding availability of bonds for less serious contraventions – order pursuant to s 70NEB(1)(a) that mother attend assessment for and, if suitable, attend post- separation parenting program.

Family Law Act 1975 (Cth) ss 65LB, 70NAC, 70NAE, 70NAF, 70NEB, 70NEC, 70NFA, 70NFB & 70NFF

Dobbs and Brayson (2007) FLC 93-346
Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) (2007) FLC 93-341

APPLICANT:

Mr Hermann

RESPONDENT:

Ms Victor

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

FILE NUMBER:

ADF

3753

1999

DATE DELIVERED:

26 June 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

31 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Croydons

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

Orders

The mother Ms Victor must within 21 days contact the program provider Anglicare KidsAreFirst at … and arrange an appointment on or before 29 August 2008 for an initial assessment as to the suitability for their post-separation program.
The mother must attend the appointment for the initial assessment at any reasonable time and place nominated by the provider.
If assessed as suitable, to attend the programs nominated by Anglicare.
Leave is given to the father and Independent Children’s Lawyer to provide the KidsAreFirst program with a copy of this order, the Reasons for Judgment made this day and Reasons for Judgment made the 31 March 2008.
It is requested that the KidsAreFirst program provide a certificate relating to the attendance of the mother following the completion of the program.
The Court to provide a copy of this order to the program provider.
Liberty to the mother to apply to vary the time and dates in this order if the program provider cannot provide suitable appointments.

IT IS NOTED that publication of this judgment under the pseudonym Hermann & Victor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3753 of 1999

Mr Hermann

Applicant

And

Ms Victor

Respondent

REASONS FOR JUDGMENT

Introduction

The father brought proceedings against the mother alleging that she contravened an order of the Court which restrained her from changing the children’s school enrolment without his consent or order of the Court. The mother admitted the contravention but claimed that she had reasonable excuse.

Hearing

The contravention proceedings were heard on 14 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hermann and Victor

Details

AGLC: Hermann and Victor [2008] FamCA 462
Case: [2008] FamCA 462
Decision Date: 26 June 2008

CaseChat Overview and Summary

In the matter of *Hermann and Victor*, Dawe J of the Federal Circuit Court of Australia considered an application concerning post-separation parenting programs. The dispute involved the mother, Ms Victor, and the father, Mr Hermann, regarding the mother's participation in a post-separation parenting program. The court's primary concern was to ensure the mother's engagement with services designed to facilitate co-parenting following separation.

The central legal issue before the court was the requirement for the mother to attend and participate in a post-separation parenting program, specifically the KidsAreFirst program provided by Anglicare. This involved determining the conditions under which such attendance would be mandated and the practical steps necessary to facilitate it, including assessment of suitability and subsequent program participation. The court also considered the role of the Independent Children's Lawyer and the provision of relevant court documents to the program provider.

Dawe J reasoned that the mother should attend an initial assessment for the KidsAreFirst program, as Anglicare provided such services in the northern suburbs. The court referenced section 65LB of the relevant legislation, which outlines the conditions for providers of post-separation parenting programs, indicating that Anglicare, as a recipient organisation funded to provide these services, met the statutory requirements. The judge determined that seeking advice from a Family Consultant was not necessary in this instance, as the suitability of the program for the mother could be assessed directly by the provider. The court ultimately ordered the mother to contact Anglicare KidsAreFirst to arrange an assessment and, if deemed suitable, to attend the nominated program.

Orders

Orders of the court

The mother Ms Victor must within 21 days contact the program provider Anglicare KidsAreFirst at … and arrange an appointment on or before 29 August 2008 for an initial assessment as to the suitability for their post-separation program.

The mother must attend the appointment for the initial assessment at any reasonable time and place nominated by the provider.

If assessed as suitable, to attend the programs nominated by Anglicare.

Leave is given to the father and Independent Children’s Lawyer to provide the KidsAreFirst program with a copy of this order, the Reasons for Judgment made this day and Reasons for Judgment made the 31 March 2008.

It is requested that the KidsAreFirst program provide a certificate relating to the attendance of the mother following the completion of the program.

The Court to provide a copy of this order to the program provider.

Liberty to the mother to apply to vary the time and dates in this order if the program provider cannot provide suitable appointments.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 65LB provides:“Conditions for providers of post-separation parenting programs (1)An organisation meets the conditions in this section if: (a) it is a recipient organisation (see subsection (2)); or (b)there is a recipient organisation in relation to the organisation (see subsection (3)). (2)An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order to provide services that include post‑separation parenting programs. (3)An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if: a) both: (i) the other organisation is a member of the organisation; and (ii)the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisation's members may provide services that include post‑separation parenting programs; or (b) both: (i)the organisation acts on behalf of a group of organisations that includes the other organisation; and (ii)the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisations on whose behalf it acts may provide services that include post‑separation parenting programs. (4)The Minister may, in writing, designate for the purposes of this section: (a) a program; or (b) part of a program; administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making post‑separation parenting programs available. (5)An instrument under this section is not a legislative instrument.” I have considered seeking the advice of a Family Consultant about the services appropriate to the mother’s needs but have determined that, in this matter, this is not necessary or appropriate. Anglicare currently provide post-separation parenting programmes through KidsAreFirst which has programmes based in the northern suburbs. The mother should attend for assessment and if assessed as suitable attend the programme.